Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowed· [2017] KEELC 2002 (KLR)

Paul Muraya Kaguri v Simon Mbaria Muchunu [2017] KEELC 2002 (KLR)

High Court of Kenya at Nyeri
13 June 2017
LWL N Waithaka
3,289 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

#

A Kenyan High Court set aside a land award adopted as a judgment against a dead man, showing courts will undo nullities even years later.

What this practically means

#

Executive summary

#
The applicant appealed to the High Court against the dismissal by A. Too, RM (15th August 2012) of his application seeking review, setting aside and stay of the orders and decree of the Kangema Principal Magistrate's Court in Land Dispute Case No. 29 of 2007, by which the award of a defunct Land Disputes Tribunal had been adopted as a judgment. By a judgment delivered on 22nd September 2015, this court dismissed the appeal, holding that the magistrate's statutory duty was merely to adopt the Tribunal award. The applicant then moved by notice of motion dated 29th March 2016 seeking review of that judgment, contending that an appeal was pending before the defunct Land Disputes Appeals Tribunal when the award was adopted, and that this was not disclosed to the court due to inadvertence of his advocate. The respondent, substituted by his son Simon Mbaria Muchunu, opposed through a replying affidavit and preliminary objection, arguing multiplicity of proceedings, res judicata, non-compliance with Order 9 Rule 9, and that the court had become functus officio. The court framed four issues and held the application was not res subjudice or res judicata, that Order 9 Rule 9 was complied with via a filed consent, and that under Section 80 of the Civil Procedure Act read with Order 45 Rule 1 it retained unfettered discretion to review its own orders. On the merits, the court found the Tribunal award had been made against the defendant after his death and without substitution, and that the purported appeal had abated, rendering the adoption of the award null and void. The application was allowed in terms of the reviewed judgment, with each party bearing their own costs.

Key legal issues

#
01

Jurisdiction of the court to review its own judgment

Holding

The court has unfettered discretion under Section 80 of the Civil Procedure Act read with Order 45 Rule 1 to review or set aside its own orders, and is not functus officio.

Reasoning

The respondent argued the court became functus officio on issuing the orders sought to be reviewed. The court rejected this, relying on Section 80 and Order 45 Rule 1 and Court of Appeal authority (Pancras T Swai v Kenya Breweries Ltd) holding that 'for any sufficient reason' need not be analogous with the other review grounds, since Section 80 confers an unfettered right to apply for review.

p. 4
02

Nullity of the award adopted while the defendant was deceased and unsubstituted

Holding

The Tribunal award was made against a deceased person without substitution; its adoption as a judgment was null and void.

Reasoning

The record showed the defendant had died before the award was made, no substitution occurred before adoption of the award, and the purported appeal to the Land Disputes Appeals Tribunal was filed by a person not appointed as personal representative and had abated on the respondent's death. Following Peterson Nguchi Kaburi, courts must not adopt patent nullities. Entry of the award was therefore null and void.

p. 5
03

Error apparent on the face of the record and right to be heard

Holding

The earlier dismissal of the appeal overlooked the fatal procedural defects, constituting an error on the face of the record justifying review.

Reasoning

The court found it had overlooked that the award was made against a deceased, unsubstituted defendant, denying him an opportunity to defend his interest. Relying on Mbaki & others v Macharia, the right to be heard is a valued right, and prejudice to a party's rights without a hearing offends all notions of justice. This justified review and setting aside of the award and consequential orders.

p. 6
04

Res subjudice, res judicata and Order 9 Rule 9 compliance

Holding

The application was neither res subjudice nor res judicata, and the applicant complied with Order 9 Rule 9 by filing a consent between outgoing and incoming advocates.

Reasoning

The present application was filed before the lower court application and sought different orders; the lower court had declined jurisdiction, so no similar matter had been heard and determined on merit. A consent between advocates was on record, satisfying Order 9 Rule 9. None of these objections therefore defeated the application.

p. 4

Legal principles established

#
  • Where a statute establishes a dispute resolution mechanism, that mechanism must be followed; a party who fails to follow it cannot claim denial of rights.
  • A magistrate adopting a tribunal award has no mandate to enquire into its legality but retains a residual duty to reject an illegal award; courts must not ratify nullities.
  • An award made against a deceased person without substitution is a nullity and its adoption as a judgment is null and void.
  • Section 80 of the Civil Procedure Act confers an unfettered right to apply for review, and 'sufficient reason' need not be analogous with the other enumerated grounds.

Court orders

#
  1. 1.The application dated 29th March 2016 is allowed in terms of the reviewed judgment
  2. 2.The judgment of this court delivered on 22nd September 2015 is reviewed and the impugned award and all consequential orders (including the decree adopted on 11th April 2012) are set aside as null and void
  3. 3.Each party to bear their own costs of the appeal, the application and the application before the lower court

Authorities

#

Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder 45 Rule 1
  • Civil Procedure RulesOrder 9 Rule 9
  • Land Disputes Tribunals Act (now repealed)Not specified

Cases cited (8)

  • Pancras T Swai v Kenya Breweries Ltd
    (2014) eKLR
  • Sarden Mohamed v Charan Singh Nard Singh and Another
    (1959) EA 793
  • Shanzu Investments Ltd v Commissioner of Lands
    CCA 100 of 1993
  • Wangechi Kimata & Another v Charan Singh
    CA 80 of 1985 (UR)
  • Peterson Nguchi Kaburi v Joseph Thuku Kaburi
    (2015) eKLR
  • Theuri Ndirangu & Anor v Mutahi Ndirangu & Anor
    Civil Application No. 5 of 2002
  • National Bank of Kenya v Wilson Ndolo Ayah
    [2009] eKLR
  • Mbaki & others v Macharia & another
    (2005) 2 EA
On appeal from
Kangema Principal Magistrate's Court (Land Dispute Case No. 29 of 2007)
Land Dispute Case No. 29 of 2007
Jurisdiction invoked
Section 80 of the Civil Procedure Act as read with Order 45 Rule 1 of the Civil Procedure Rules (review of the High Court's own judgment of 22nd September 2015)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Paul Muraya Kaguri v Simon Mbaria Muchunu [2017] KEELC 2002 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2002/eng@2017-06-13

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.